EDWARD LUCE, PETITIONER V. UNITED STATES OF AMERICA
No. 83-912
In the Supreme Court of the United States
October Term, 1984
On Writ of Certiorari to the United States Court of Appeals for the
Sixth Circuit
Brief for the United States
TABLE OF CONTENTS
Opinion below
Jurisdiction
Statement
Summary of argument
Argument:
The district court's preliminary ruling denying petitioner's
motion to prohibit cross-examination about a prior
conviction was not reviewable on appeal after petitioner
declined to testify at trial
A. The ruling was necessarily tentative and any injury
to petitioner was purely speculative
B. It is not unfair to require a defendant to testify
in order to preserve his claim that impeachment evidence
was inadmissible
Conclusion
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1a-13a) is reported
at 713 F.2d 1236.
JURISDICTION
The judgment of the court of appeals was entered on August 9, 1983.
A petition for rehearing was denied on October 3, 1983 (Pet. App.
14a). The petition for a writ of certiorari was filed on December 1,
1983, and granted on March 26, 1984 (J.A. 31). The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether a preliminary ruling by the district court, denying
petitioner's motion to limit the government's ability to cross-examine
him about a prior conviction, was reviewable on appeal after
petitioner declined to testify at trial.
STATEMENT
After a jury trial in the United States District Court for the
Western District of Tennessee, petitioner was convicted of conspiracy
and possession with intent to distribute cocaine, in violation of 21
U.S.C. 846 and 841(a)(1). He was sentenced to concurrent terms of
four years' imprisonment, to be followed by a three-year special
parole term, and fined $3000 on each count. The court of appeals
affirmed. Pet. App. 1a-13a. /1/
1. The evidence at trial, the sufficiency of which is not in
dispute, established that James Luigs, Robert Kolofer, and petitioner
conspired to sell cocaine to Dallas Luigs on October 1, 1981. Dallas
Luigs had been arrested by local police officers several days before
for possession of two and one-half ounces of cocaine that he had
bought from his cousin, co-defendant James Luigs (Tr. 67). He agreed
to cooperate to avoid prosecution (Tr. 41-42, 126-127). Accordingly,
he telephoned his cousin (Tr. 43) to arrange the purchase of more
cocaine (Tr. 67).
James Luigs, who was a business associate of petitioner's (Tr. 44),
flew from Chicago to Memphis on October 1 to consummate the sale. As
they had done before, the two cousins drove to a Holiday Inn parking
lot (Tr. 68-69). /2/ James Luigs then went into the hotel, returned
with Kolofer (Tr. 69), and opened the trunk of a Mercury parked in the
lot. In the trunk was an attache case. James Luigs opened the case
and took out a brown paper bag; inside the bag was another plastic
bag, and in that were several smaller bags containing cocaine (Tr. 70,
207-208). Memphis police officers watching the parking lot then
arrested James Luigs and Kolofer (Tr. 70, 133-134, 153-157).
Petitioner's fingerprints were found on the larger cocaine-filled
plastic bag (Tr. 227, 245, 262-263). /3/ The Mercury was also
circumstantially tied to petitioner: in 1980 petitioner had gone to
an automobile dealership in a Chicago suburb and ordered the car.
When the car was delivered, however, it was registered in the name of
Richard R. Clark (Tr. 187-189). Police investigation revealed that no
such person lived at the address given. No current driver's license
was issued to a Richard R. Clark, and agents were unable to locate any
such individual (Tr. 363-366).
In December 1981, DEA agents obtained a warrant for petitioner's
arrest on the charges involved in this case. When they went to his
office to execute it petitioner was not there; the agents left word
for him to call them (Tr. 361-363). About an hour and a half later
police officers saw petitioner entering a car parked behind the
office. They approached him, identifying themselves, and petitioner
sped away. After a high-speed chase, converging police cars were able
to stop petitioner and effect the arrest (Tr. 374-377).
2. At trial petitioner filed a motion in limine to restrict the
government from using a 1974 conviction to impeach him if he chose to
testify (J.A. 4-5). In the motion petitioner asserted that the
conviction had been expunged upon his successful completion of
probation and contended that it was inadmissible under Fed. R. Evid.
609(a) because it did not involve dishonesty or false statement and
because its prejudicial effect outweighed its probative value. In a
mid-trial hearing outside the jury's presence, counsel reiterated that
either petitioner had been discharged under state law (see Ill. Ann.
Stat. ch. 56 1/2, Section 710 (Smith-Hurd Supp. 1984-1985)), or the
prior conviction -- allegedly for possession of marijuana -- had been
expunged (Tr. 336; see J.A. 11). The government responded that it
had no evidence of petitioner's discharge or expungement (J.A. 10).
State records did show that he had been arrested in 1978 for a
probation violation relating to that conviction (Tr. 337-356).
Petitioner did not rebut the government's contention and introduced no
evidence of discharge or expungement.
Petitioner then argued that the probative value of this prior
conviction for possession of marijuana was outweighed by its
prejudicial effect, and that it should accordingly be excluded under
Rule 609(a)(1) of the Federal Rules of Evidence (J.A. 11-12). /4/ The
court agreed that if the prior conviction was for the possession of
marijuana it would not be sufficiently probative of petitioner's
honesty to be admissible (J.A. 13, 14-15). The government
represented, however, that petitioner had been convicted for
possession of a controlled substance under an Illinois statute that
did not include marijuana (Tr. 356-357; Ill. Ann. Stat. ch. 56 1/2,
Section 1402 (Smith-Hurd Supp. 1984-1985)). When petitioner was
unable to rebut the government's claim, the district court ruled that
a conviction for a controlled substance other than marijuana was a
"crime involving moral turpitude) that fell within the category of
permissible impeachment evidence. Accordingly, it declined to exclude
the prior conviction altogether (J.A. 19-21). The court noted that
"if (petitioner) goes * * * into other elements, I don't know anything
about drugs, I have never had any dealing with drugs * * * then the
door is open to the government to go into the matter of credibility as
it relates to the defendant in respect of a prior conviction or a
prior offense" (J.A. 21-22). The court ruled, however, that
petitioner could give limited testimony explaining his flight to avoid
arrest without being impeached by his prior conviction (J.A. 16-17,
21-22).
Petitioner chose not to testify at trial. Although he now claims
(Br. 17) that the in limine ruling "forc(ed)" him to remain off the
stand, petitioner did not assert before the district court that his
decision not to testify was based on the anticipated impeachment, nor
did he make an offer of proof or otherwise outline his proposed
testimony.
3. On appeal, petitioner contended that the district court abused
its discretion in denying the motion in limine without making a
specific finding that the probative value of the prior conviction
outweighed its prejudicial effect. The court of appeals declined to
reach the issue because petitioner had not testified at trial and his
prior convictions accordingly were not offered into evidence against
him. Pet. App. 2a-12a.
The court advanced a number of reasons why a defendant who chooses
not to testify should not be permitted to challenge the court's in
limine ruling on appeal. First, an advisory ruling on a motion in
limine is by definition preliminary, subject to change by the trial
court "for whatever reason, when the evidence is actually offered and
objected to at trial" (Pet. App. 6a (footnote omitted)). Second,
because the trial court has discretion not to rule on motions in
limine, overturning convictions on the basis of such rulings will
ultimately discourage the practice of giving advisory rulings (ibid.).
Third, a reviewing court in a case such as this would lack the
"concrete factual basis (that) is required for appellate review of the
merits of the evidence's admissibility" (id. at 8a). Indeed, here
there was not even any indication that petitioner "was actually
precluded from testifying by fear of impeachment or whether his
testimony would have significantly aided his defense" (ibid.).
Finally, allowing review here would make it impossible for the
appellate court to decide whether the district court's error was
harmless, since the court of appeals would have before it neither the
defendant's proposed testimony nor the details of the government's
cross-examination (id. at 7a-8a).
SUMMARY OF ARGUMENT
Petitioner obtained an in limine ruling from the district court on
the admissibility of a prior conviction for impeachment purposes. He
subsequently chose not to testify at trial, and was convicted.
Despite the preliminary nature of the decision on his motion and the
lack of any record evidence that he would have testified had he
prevailed on it, petitioner challenged the ruling before the court of
appeals. That court properly declined to review the ruling. Any
injury to petitioner arising out of the in limine ruling is wholly
speculative. Reviewing decisions to admit evidence under Rule 609
only when a defendant has testified and the challenged evidence has
actually been admitted over his objection at trial violates no right
of petitioner and serves the important government interests of
preventing defendants from manufacturing artificial claims for appeal
and from securing reversals of convictions without a clear showing of
prejudicial error.
An in limine motion such as petitioner's seeks an advisory ruling
on an evidentiary issue that may arise at trial. A court normally
need not decide such a motion. When it does, the parties may take the
ruling into account as one factor among many in planning their trial
strategy. The decision nonetheless is only a preliminary indication
of how the court expects to rule. The ruling is subject to change if
the court determines that its discretion should be exercised
differently in light of the actual course of the trial, and the point
may be moot if the prosecution elects not to introduce the evidence
despite a favorable ruling on the motion in limine. It makes little
sense to treat an in limine ruling as final and reviewable on appeal
when it is recognized as tentative in the district court.
Petitioner's claim of prejudice assumes not only that the ruling would
have remained unchanged, but also that he would have testified but for
the ruling and that the government would actually have offered the
prior conviction to impeach his testimony. Moreover, an appellate
court cannot properly review the balancing required under Rule
609(a)(1) outside the concrete context of actual testimony, nor can it
determine whether any error was harmless.
Any injury that petitioner may claim from the in limine ruling is
accordingly purely speculative. There is no evidence in the record
that petitioner would have testified had he prevailed on the motion,
nor did he make an offer of proof as to what his testimony would have
been. Whether the government would have been able to offer the prior
conviction on some ground other than Rule 609, or whether the evidence
would have been offered at all, can only be guessed. Nor can one know
how or on what basis the district court would ultimately have ruled
had it been presented with the issue in the concrete context of
petitioner's actual testimony at trial. Whether a decision admitting
evidence of the conviction at trial would have been error and, if so,
whether such an error would have been harmless similarly cannot be
ascertained on this record.
In contrast to the hypothetical injury that petitioner asserts
stands the concrete claim of prejudice that he could have made had he
actually taken the stand and the evidence been admitted. There is of
course no question but that a ruling actually admitting the prior
conviction over petitioner's objection would have been reviewable on
appeal. Deciding whether to testify -- and thereby to obtain a
reviewable evidentiary ruling -- is just one of a number of difficult
tactical choices that a defendant must make. But the fact that it is
difficult does not mean that a defendant must be permitted to escape
the consequences of his choice by challenging a preliminary ruling
without taking the stand. A defendant has no constitutional right to
an in limine ruling, nor does the erroneous admission of a prior
conviction rise to the level of a constitutional violation. In such
circumstances, there is no persuasive claim to a right to challenge an
in limine ruling on appeal, nor is there any unfairness in limiting a
defendant's evidentiary challenges on appeal to evidence that was
actually introduced at trial.
Far from being constitutionally mandated or necessary to ameliorate
unfairness, reviewability of in limine rulings such as the one at
issue here would offer defendants undue opportunity to seek to inject
reversible error without sufficient countervailing benefits to the
judicial process. A decision by this Court that such rulings are
reviewable would be seen as an invitation to defendants to file
numerous in limine motions respecting matters that may in fact not be
critical to their decision whether to testify, in the hope that one
might be erroneously denied and thus provide the basis for overturning
a conviction. One court of appeals has sought to diminish this risk
by conditioning reviewability on a defendant's commitment on the
record to testify if the motion is granted, and to make an offer of
proof regarding the content of his proposed testimony -- conditions
petitioner did not satisfy. But even these precautions would be of
only limited assistance in discouraging unwarranted motions, because
any such commitment would be unenforceable at trial and review of the
correctness of the in limine ruling would remain unduly speculative in
the absence of the defendant's actual testimony at trial.
ARGUMENT
THE DISTRICT COURT'S PRELIMINARY RULING DENYING PETITIONER'S MOTION
TO PROHIBIT CROSS-EXAMINATION ABOUT A PRIOR CONVICTION WAS NOT
REVIEWABLE ON APPEAL AFTER PETITIONER DECLINED TO TESTIFY AT TRIAL
A. The Ruling Was Necessarily Tentative And Any Injury To Petitioner
Was Purely Speculative
An in limine ruling gives the parties a preliminary indication of
how the court intends to decide an evidentiary question should the
evidence actually be offered at trial. /5/ Such a tentative ruling,
even if erroneous, cannot in itself provide the type of concrete
injury and complete factual record necessary for proper review on
appeal.
1. In limine motions are commonly used to obtain advisory rulings
on evidentiary issues before the evidence is offered for admission at
trial. There is normally no right to such an advance ruling. See
pages 20-22, infra. When an in limine ruling is made, it may provide
useful guidance for the parties, but it is nonetheless only an
advisory determination, subject to change. See Pet. App. 5a-6a;
United States v. Key, 717 F.2d 1206, 1208 (8th Cir. 1983) (per
curiam). As petitioner acknowledges (Br. 14-15), the court retains
the ability to modify its initial ruling based on the actual course of
the trial.
This is particularly necessary in the context of Rule 609(a)(1),
because a court cannot exercise its discretion in balancing the
probative value and prejudicial effect of a prior conviction without
taking into account factors that depend on the course of trial, such
as the defendant's actual testimony and the decisiveness of his
credibility. See United States v. Key, 717 F.2d at 1208-1209; see
generally Luck v. United States, 348 F.2d 763 (D.C. Cir. 1965);
Gordon v. United States, 383 F.2d 936 (D.C. Cir. 1967), cert. denied,
390 U.S. 1029 (1968). For example, impeachment evidence may assume an
unanticipated relevance where the defendant affirmatively denies
involvement in the sort of activity that was the subject of a prior
conviction. /6/ See United States v. Gaertner, 705 F.2d 210, 216-217
(7th Cir. 1983); United States v. Mehrmanesh, 682 F.2d 1303, 1309
(9th Cir. 1982); cf. Walder v. United States, 347 U.S. 62 (1954). It
would be anomalous to treat an in limine ruling as final and
reviewable if the defendant does not take the stand even though it is
clearly subject to change if the defendant does indeed testify and the
evidence is offered. /7/ Cf. United States v. Toney, 615 F.2d 277,
282 (5th Cir.) (Tjoflat, J., concurring) (describing difficulties
inherent in considering an in limine ruling final), cert. denied, 449
U.S. 985 (1980).
2. A number of other factors also contributes to the necessarily
speculative nature of any injury that may be claimed as a result of an
limine ruling. Cf. Chaffin v. Stynchcombe, 412 U.S. 17, 33 (1973)
("(s)everal contingencies must coalesce" before injury could occur).
Most important, there can be no assurance that the defendant whose in
limine motion to exclude evidence was denied would actually have taken
the stand had he prevailed on the motion. See New Jersey v. Portash,
440 U.S. 450, 467 (1979) (Blackmun, J., dissenting). In the present
case, "(t)here is * * * no hint in the record from which (a reviewing
court) can decide whether Luce was actually precluded from testifying
by fear of impeachment" (Pet. App. 8a).
There are in fact several considerations that the defendant and his
counsel must weigh in deciding whether he should take the stand. See,
e.g., Crampton v. Ohio (decided with McGautha v. California, 402 U.S.
183, 214-216 (1971); United States v. Grayson, 438 U.S. 41, 57 (1978)
(Stewart, J., dissenting). In Brooks v. Tennessee, 406 U.S. 605
(1972), for example, this Court held that it is unconstitutional to
require a defendant to decide whether to testify before any other
defense witnesses have testified, because of the defendant's crucial
need of "an opportunity to evaluate the actual worth of (his)
evidence" (id. at 612) in deciding whether he should take the stand.
/8/ See United States v. Cook, 608 F.2d 1175, 1189 (9th Cir. 1979) (en
banc) (Kennedy, J., dissenting in part and concurring in part) ("the
actual conduct of the trial is a significant, and legitimate, factor
in a defendant's election to testify or remain silent"), cert. denied,
444 U.S. 1034 (1980). Thus, while an in limine ruling may be an
important factor in the defendant's decision, it cannot normally be
regarded as decisive in itself. New Jersey v. Portash, 440 U.S. at
467 (Blackmun, J., dissenting) (an accused's decision whether to
testify "seldom turns on the resolution of one factor among many").
See also United States v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir.),
cert. denied, 449 U.S. 849 (1980); cf. United States v. Pantone, 634
F.2d 716, 723 (3d Cir. 1980). Certainly it should not simply be
presumed to be the basis for the defendant's decision, as petitioner
would have this Court do.
A requirement that a defendant, "by a statement of his attorney * *
* establish on the record that he will in fact take the stand and
testify" (Cook, 608 F.2d at 1186) thus should be a minimum
prerequisite to reviewability -- one petitioner cannot satisfy here.
Even that rule, while preferable to requiring no record at all, is
hardly sufficient to convert a hypothetical injury into one concrete
enough to support reviewability. See pages 30-31 note 22, infra.
Because such an undertaking is unenforceable (see generally Brooks,
406 U.S. at 613), there can be no assurance that a defendant has in
fact decided not to testify solely because of the in limine ruling or
that, if the ruling be reversed, he will take the stand upon retrial.
Cf. United States v. Spinella, 506 F.2d 426 (5th Cir.), cert. denied,
423 U.S. 917 (1975).
An in limine ruling also provides insufficient proof of injury
because the government could decide at trial to forgo the use of a
prior conviction for impeachment purposes even though the court has
indicated that it would probably admit the evidence. See generally
New Jersey v. Portash, 440 U.S. at 467 (Blackmun, J., dissenting).
The prosecutor may, for example, decide that there is sufficient
impeachment evidence apart from the prior conviction, or that the
defendant's testimony did not effectively counter his case. Such
forbearance is particularly likely where the balance between
prejudicial effect and probative value is close, so that there is a
real risk of reversal. In such a situation the prosecutor is more
likely to choose to protect a conviction from attack on appeal than to
introduce evidence that does not appear necessary to his case. See
United States v. Cobb, 588 F.2d 607, 613 (8th Cir.), cert. denied, 440
U.S. 947 (1979).
Finally, a prior conviction that a court erroneously ruled
admissible under Rule 609 may properly have been admissible under a
different rationale. For example, other crimes may be admitted for a
variety of purposes under Rule 404(b). See, e.g., United States v.
McCollum, 732 F.2d 1419, 1424 (9th Cir. 1984). Here again, however,
the admissibility of the evidence depends in large part on the actual
course of trial. See United States v. Beechum, 582 F.2d 898, 914 (5th
Cir. 1978), cert. denied, 440 U.S. 920 (1979); Note, Other Crimes
Evidence at Trial: Of Balancing and Other Matters, 70 Yale L.J. 763,
771-773 (1961); Fed. R. Evid. 404 advisory committee note (b).
3. In view of all of these contingencies, there can be no assurance
that a defendant was actually prejudiced by even a demonstrably
erroneous in limine ruling under Rule 609. Appellate review is also
problematic because, in the absence of a concrete record of a
defendant's trial testimony and the admission of a prior conviction,
an appellate court can neither review the district court's exercise of
discretion nor determine whether the error, if any, was harmless.
Appellate review of the balancing required under Rule 609(a)(1) /9/ is
hampered in the absence of a trial record for the same reasons that
the district court requires such a record. See page 11, supra. The
record is especially vital for review purposes because it will place
the district court's exercise of discretion in a factual context.
Review of an in limine ruling outside such a context will tend to be a
largely academic inquiry rather than a determination of the
reasonableness of an exercise of discretion. Compare United States v.
McCollum, 732 F.2d at 1424-1426 (concluding that probative value
outweighed prejudicial effect of prior conviction under Rule 404(b)
where defendant did not take the stand) with 732 F.2d at 1428-1429
(Reinhardt, J., dissenting) (concluding that prejudicial effect
outweighed probative value).
In order to determine the effect of error on a trial, moreover, an
appellate court normally must carefully review a complete factual
record. /10/ See United States v. Hasting, No. 81-1463 (May 23,
1983), slip op. 10-13; id. at 4-7 (Stevens, J., concurring in the
judgment). For example, where evidence of guilt is overwhelming or
the wrongfully admitted impeachment evidence is merely cumulative of
other evidence, the error may often properly be viewed as harmless.
See, e.g., Kotteakos v. United States, 328 U.S. 750, 763 (1946); see
also United States v. Simpson, 709 F.2d 903, 908 (5th Cir. 1983),
cert. denied, No. 83-5496 (Oct. 31, 1983); Government of The Virgin
Islands v. Bedford, 671 F.2d 758, 762 (3d Cir. 1982); United States
v. Spero, 625 F.2d 779, 782 (8th Cir. 1980).
When a defendant does not testify, the reviewing court is required
to evaluate a trial court's discretionary evidentiary ruling outside a
concrete and complete factual setting, and hypothetically to determine
the existence and degree of prejudice to the defendant had the
proposed impeachment actually occurred. The appellate court will,
however, lack the factual record necessary to determine whether the
potential error would have been cured by the trial court or the
prosecutor, or whether other circumstances would have rendered the
evidence properly admitted or the ruling harmless error. Most
significantly, it will lack the defendant's testimony, which might
have turned out to be largely immaterial to the factual and legal
issues of the case. /11/ Consequently, if error, an evidentiary
ruling allowing impeachment of proposed testimony may be subject to
virtually automatic reversal when the defendant does not testify. See
United States v. Cook, 608 F.2d at 1191 (Sneed, J., dissenting in part
and concurring in part); United States v. Toney, 615 F.2d at 281
(Tjoflat, J., concurring). See also pages 29-31 & note 22, infra. A
defendant who chooses to testify, on the other hand, will be entitled
to reversal only if he can point to actual prejudice. This inequality
in result will not only furnish an additional appellate issue to a
defendant who "has no intention of taking the stand and testifying in
his own behalf" (New Jersey v. Portash, 440 U.S. at 468 (Blackmun, J.,
dissenting)), but will also encourage defendants to forgo the
opportunity to testify, since, if they are convicted, they can still
raise their evidentiary point on appeal and thus have an opportunity
to force a retrial -- at which they may or may not elect to testify --
if the ruling was erroneous.
B. It Is Not Unfair To Require A Defendant To Testify In Order To
Preserve His Claim That Impeachment Evidence Was Inadmissible
It is wholly proper to require that a defendant in petitioner's
position take the stand and that impeachment evidence actually be
admitted over his objection in order to preserve the claim of
prejudicial error in the ruling that such evidence was admissible.
Such a procedure violates no rights of the defendant, constitutional
or otherwise. Moreover, the courts have a clear interest in this
procedure in order to ensure that such arguments are reviewed for
prejudice in a concrete factual context and to prevent defendants from
manufacturing claims of reversible error.
1.a. Petitioner's claim (Br. 8-13, 17) that his constitutional
right to testify was infringed by the court's in limine ruling is
manifestly incorrect. A defendant who testifies is subject to
impeachment just as is any other witness. Jenkins v. Anderson, 447
U.S. 231, 235-236 (1980); Grunewald v. United States, 353 U.S. 391,
420 (1957); Raffel v. United States, 271 U.S. 494 (1926). The
constraints facing a defendant who is subject to impeachment if he
takes the stand "arise solely from the fact that the defendant is
quite properly treated like any other witness who testifies at trial."
United States v. Grayson, 438 U.S. 41, 57 (1978) (Stewart, J.,
dissenting). A violation of Rule 609 accordingly does not rise to the
level of an unconstitutional infringement of the right to testify or a
deprivation of due process. See Leno v. Gaughan, 664 F.2d 314 (1st
Cir. 1981) (per curiam); United States v. Belt, 514 F.2d 837, 846-850
(D.C. Cir. 1975) (en banc); Hubbard v. Wilson, 401 F. Supp. 495,
498-500 (D. Colo. 1975); cf. Spencer v. Texas, 385 U.S. 554, 560-562
(1967) (upholding recidivist statutes under which jury learns of
accused's prior convictions); Marshall v. Lonberger, 459 U.S. 422,
437-438 & n.6(1983). /12/
Significantly, petitioner had no right to a preliminary ruling on
the admissibility of the prior conviction. /13/ "Neither the fifth
and sixth amendments nor the Federal Rules of Evidence impress upon a
trial court a duty to aid the defendant in formulating his trial
strategy regarding the risks of impeachment should he decide to take
the stand." United States v. Witschner, 624 F.2d 840, 844 (8th Cir.),
cert. denied, 449 U.S. 994 (1980). See also New Jersey v. Portash,
440 U.S. at 462 n.1 (Powell, J., concurring) ("there is no
constitutional requirement that defendants be given such a ruling at a
time when only a hypothetical question can be presented"); Pet. App.
6a; United States v. Cook, 608 F.2d at 1190 (Kennedy, J., dissenting
in part and concurring in part); United States v. Tercero, 640 F.2d
190, 196 (9th Cir. 1980), cert. denied, 449 U.S. 1084 (1981); United
States v. Kahn, 472 F.2d 272, 282 (2d Cir.), cert. denied, 411 U.S.
982 (1973); United States v. Hickey, 596 F.2d 1082, 1087 (1st Cir.),
cert, denied, 444 U.S. 853 (1979); United States v. Key, 717 F.2d at
1208; United States v. Johnston, 543 F.2d 55, 59 (8th Cir. 1976).
Without such a right, petitioner's argument must fail: if he can be
required to take the stand without benefit of an in limine ruling in
order to raise the impeachment issue on appeal, he can surely be
required to do so where, in its discretion, the court has provided him
with preliminary guidance on the question.
The advance ruling provided such guidance for petitioner, but it in
no way compelled him to remain silent, nor did it threaten a penalty
if he chose to testify. /14/ Cf. Brady v. United States, 397 U.S.
742, 750 (1970) (defendant's decision to take the stand or face
certain conviction is not compelled); Brooks v. Tennessee, 406 U.S.
605, 614 (1972) (Burger, C.J., dissenting) (same); United States v.
Grayson, supra (sentencing judge's consideration of defendant's false
trial testimony does not impermissibly chill right to testify). See
also Selective Service System v. Minnesota Public Interest Research
Group, No. 83-276 (July 5, 1984), slip op. 14; Williams v. Florida,
399 U.S. 78, 84 (1970); Crampton v. Ohio, 402 U.S. at 213-215;
Harrison v. United States, 392 U.S. 219, 222 (1968). For all these
reasons, the in limine ruling, even if erroneous, implicated no
concerns of constitutional magnitude. /15/
b. Petitioner's argument ultimately comes down to the assertion
that the in limine ruling must be reviewable because otherwise he
would be left with a difficult choice -- whether to take the stand,
risk impeachment and raise his evidentiary claim on appeal if he is
convicted, or to forgo testifying in the belief that this would give
him the best chance of acquittal. /16/ The argument proves too much,
for its logic would require courts to rule in all cases on in limine
motions brought under Rule 609. Otherwise, defendants would be left
with a tactical decision even more difficult than that faced by
petitioner -- they would have to decide whether to testify and risk
impeachment without any indication by the court whether it will admit
the evidence in question. But, as we have made clear, petitioner had
no right to an in limine ruling (pages 20-22, supra). He accordingly
has no right to obtain review of such a ruling, which provided
guidance but was not designed to eliminate the need for him to face
and make what concededly may have been a difficult decision.
Difficult choices are in any event "a necessary part of the
criminal justice system" (Middendorf v. Henry, 425 U.S. 25, 48
(1976)), and even though they may not be "easy or pleasant * * * to
make" (South Dakota v. Neville, 459 U.S. 553, 564 (1983)), "the
Constitution does not by that token always forbid requiring (a
defendant) to choose" (Crampton v. Ohio, 402 U.S. at 213). There is
nothing impermissible in confronting defendants in the position of
petitioner with the "choice of litigation tactics" (Jenkins v.
Anderson, 447 U.S. at 238) in deciding whether to testify in order to
preserve an evidentiary claim for appellate review.
As we have demonstrated, a decision to admit a prior conviction
under Rule 609 does not implicate or burden any constitutional right.
This Court has held in a variety of contexts that government-imposed
choices may properly affect the exercise of constitutional rights.
See, e.g., South Dakota v. Neville, supra (decision whether to take
blood-alcohol test); Jenkins v. Anderson, supra (impeachment of
defendant by pre-arrest silence); United States v. Grayson, supra
(untruthful trial testimony may be considered at sentencing); Corbitt
v. New Jersey, 439 U.S. 212 (1978) (lesser punishment available if
defendant pleads non vult rather than exercising right to jury trial);
Chaffin v. Stynchcombe, supra (jury may sentence defendant to greater
term on retrial after appeal than he received at first trial);
Crampton v. Ohio, supra (capital defendant may be tried at single
proceeding to determine guilt and punishment). A fortiori, the
tactical decision confronting petitioner here -- involving no burden
on a constitutional right -- is not prohibited.
Petitioner's contention that he was influenced in his decision not
to testify by the in limine ruling -- even if accepted -- in no way
requires that the ruling be reviewable on appeal. See Brady v. United
States, 397 U.S. at 756-757; United States v. Calderon, 348 U.S. 160,
164 n.1 (1954); cf. Stickland v. Washington, No. 82-1554 (May 14,
1984), slip op. 20. Where an adequate procedure is available for a
defendant to challenge a ruling, he can legitimately be required to
adhere to that procedure or else to forfeit his claim. See, e.g.,
Namet v. United States, 373 U.S. 179, 190 (1963); McMann v.
Richardson, 397 U.S. 759, 768 (1970); id. at 782 n.5 (Brennan, J.,
dissenting); Walker v. City of Birmingham, 388 U.S. 307, 316-318
(1967); Wainwright v. Sykes, 433 U.S. 72 (1977); Lefkowitz v.
Newsome, 420 U.S. 283, 289 (1975); Fed. R. Crim. P. 12(b) and (f);
Westen & Mandell, To Talk, to Balk, or to Lie: The Emerging Fifth
Amendment Doctrine of the "Preferred Response," 19 Am. Crim. L. Rev.
521, 523-527 (1982). For example, where a defendant has entered a
guilty plea, he may not later attack his conviction on the ground that
the plea was influenced by an erroneous ruling or view of the law.
/17/ His proper course if "to contest his guilt, prevail * * * at
trial, on appeal, or, if necessary in a collateral proceeding, and win
acquittal" (McMann v. Richardson, 397 U.S. at 768). He is not
permitted to circumvent the normal avenues of review simply on a claim
that a particular factor influenced his tactical decisions.
An adequate procedure for review was clearly available here: /18/
if petitioner had taken the stand and the prior conviction had been
admitted over his objection, he could have raised his claim on appeal.
Indeed, Justice Powell, concurring in Portash, clearly expressed (440
U.S. at 462 (footnote omitted)) the desirability of presenting claims
in this manner:
The preferred method for raising claims such as Portash's would
be for the defendant to take the stand and appeal a subsequent
conviction, if -- following a claim of immunity -- the
prosecutor were allowed to use immunized testimony for
impeachment. Only in this way may the claim be presented to a
reviewing court in a concrete factual context. Moreover,
requiring that the claim be presented only by those who have
taken the stand will prevent defendants with no real intention
of testifying from creating artificial constitutional challenges
to their convictions.
There can be no claim that such a procedure would not adequately
protect petitioner's interest in obtaining review of the court's
evidentiary ruling. /19/ Compare Blackledge v. Perry, 417 U.S. 21
(1974); Fay v. Noia, 372 U.S. 391, 439-440 (1963); Green v. United
States, 355 U.S. 184 (1957). For these reasons, a defendant may
legitimately be required to testify in order to preserve for appeal
his challenge to a ruling admitting a prior conviction under Rule 609.
2. The societal interest in the fair and efficient administration
of criminal justice is clearly furthered by a rule ensuring that
evidentiary claims such as the one here at issue are reviewed only
when evidence is actually offered and admitted over a defendant's
objection. /20/ This requirement is necessary to "prevent defendants
with no real intention of testifying from creating artificial * * *
challenges to their convictions." New Jersey v. Portash, 440 U.S. at
462 (Powell, J., concurring) (footnote omitted). See also Pet. App.
7a; United States v. Cook, 608 F.2d at 1191 (Sneed, J., dissenting in
part and concurring in part); id. at 1191 (Kennedy, J., dissenting in
part and concurring in part) (issue is "what are the most sensible
requirements for establishing prejudice where evidence of prior
convictions is erroneously ruled admissible in a federal trial"). A
decision from this Court holding that in limine rulings are reviewable
even when the evidence in question is not actually offered at trial
would serve as a considerable inducement to defendants to file
preliminary motions in the hope of manufacturing reversible error,
even though the ruling on the motion is not in fact the dispositive
consideration in their decision whether to testify. See New Jersey v.
Portash, 440 U.S. at 468 (Blackmun, J., dissenting).
Such a result would hardly be conducive to the fair administration
of criminal justice. /21/ Because of the difficulties inherent in
determining whether an erroneous in limine ruling actually prejudiced
a defendant (see pages 11-18, supra), appellate courts could "'become
* * * mired in harmless error.'" United States v. Hasting, slip op. 10
(quoting R. Traynor, The Riddle of Harmless Error 81 (1970)). /22/
See generally McDonough Power Equipment, Inc. v. Greenwood, No. 82-958
(Jan. 18, 1984), slip op. 4-6. Unless courts scrupulously require
that non-testifying defendants make a clear showing of prejudicial
error, they will often prevail because appellate courts may prove
reluctant to find an error harmless in light of the necessarily
speculative nature of their inquiry. See Pet. App. 7a; United States
v. Cook, 608 F.2d at 1191 (Sneed, J., dissenting in part and
concurring in part); United States v. Toney, 615 F.2d at 281
(Tjoflat, J., concurring). A defendant who testifies, on the other
hand, will often have a more difficult task in demonstrating
prejudice; indeed, when the evidence ultimately is not offered, is
not admitted, or is admitted for a concededly proper purpose, he will
-- quite properly, of course -- have lost his claim on appeal
altogether. There is no justification for granting non-testifying
defendants such an advantage over those who do take the stand. Cf.
Westen & Mandell, 19 Am. Crim. L. Rev. at 525 n.13.
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
REX E. LEE
Solicitor General
STEPHEN S. TROTT
Assistant Attorney General
ANDREW L. FREY
Deputy Solicitor General
BRUCE N. KUHLIK
Assistant to the Solicitor General
SARA CRISCITELLI
Attorney
JULY 1984
/1/ Petitioner was acquitted on one count of possession with intent
to distribute cocaine. Co-defendant James Luigs was also convicted on
one count each of conspiracy and possession. Co-defendant Robert
Kolofer was convicted on one count of possession. The court of
appeals also affirmed their convictions.
/2/ Dallas Luigs had been introduced to petitioner in the summer of
1981 (Tr. 44) and had twice purchased cocaine from him (Tr. 46-49).
On one occasion petitioner sold cocaine to Dallas Luigs from a
warehouse in Chicago (Tr. 46). On the second occasion petitioner flew
to Memphis and distributed cocaine out of the trunk of an automobile
parked at the Holiday Inn (Tr. 48-49). James Luigs also flew to
Memphis twice and sold his cousin cocaine from the trunk of a car
parked at the Holiday Inn (Tr. 50-53).
/3/ As part of its direct case the government introduced a card
bearing petitioner's fingerprints, taken in December 1978 (Tr. 245;
GX 13). Petitioner requested an instruction that the prints were not
taken in connection with a criminal matter (Tr. 248), even though they
had been taken when petitioner was picked up for a probation violation
(Tr. 337). The court instructed the jury that it was not to draw any
inference from the fact that petitioner's fingerprints had been taken
previously (Tr. 250-251).
/4/ Rule 609(a) provides:
General rule. For the purpose of attacking the credibility of a
witness, evidence that he has been convicted of a crime shall be
admitted if elicited from him or established by public record during
cross-examination but only if the crime (1) was punishable by death or
imprisonment in excess of one year under the law under which he was
convicted, and the court determines that the probative value of
admitting this evidence outweighs its prejudicial effect to the
defendant, or (2) involved dishonesty or false statement, regardless
of the punishment.
/5/ "In limine" means "(o)n or at the threshold; at the very
beginning; preliminarily" (Black's Law Dictionary 708 (5th ed. 1979).
While it is sometimes taken to refer only to motions made before
trial, it is often used, as we use it here, to refer to any motion,
whether before or during trial, "to exclude anticipated prejudicial
evidence before the evidence is actually offered by the opposing
party." State v. Rodriguez, 126 Ariz. 28, 30, 612 P.2d 484, 486
(1980).
/6/ Indeed, the district court in the instant case may have
intended to admit the prior conviction only in such circumstances.
The difficulty in determining the district court's precise ruling (see
J.A. 16-17, 19-20, 21-22) is itself a reason for precluding review of
it on appeal. See New Jersey v. Portash, 440 U.S. 450, 467-471 (1979)
(Blackmun, J., dissenting). The court apparently agreed to exclude
the prior drug conviction if the defendant limited his testimony to
his flight before arrest, but said that it would be admitted if the
defendant denied prior involvement with illegal drugs (J.A. 21-22).
In an important respect, then, the court ruled in favor of petitioner,
who made no showing of what his testimony would have been or, in
particular, whether he desired to testify with respect to any subject
other than his flight before arrest.
/7/ Because in limine rulings are inherently subject to change, it
makes little sense to preclude review, as does the Seventh Circuit,
only where the district court explicitly reserves the right to
reconsider its decision. See United States v. Banks, 687 F.2d 967,
970-972 (7th Cir. 1982), cert. denied, 459 U.S. 1212 (1983).
/8/ Here, petitioner in fact called another witness after the
court's ruling (see Tr. 431).
/9/ Petitioner's contention (Br. 15) that the district court "never
attempted any balancing" is belied by the court's ruling that the
evidence would be admissible if petitioner denied prior involvement
with drugs (in which case it would have significant probative value),
but not if he limited his testimony to explaining his flight before
arrest (where the probative value would be less). See J.A. 21-22.
/10/ An exception arises where the error is "case-dispositive,"
that is, where it affects the very ability of the government to
introduce sufficient evidence to convict the defendant, as is often
the case with rulings on suppression motions. Erroneous evidentiary
rulings seldom fall into that category.
Examination of the history and policy underlying Fed. R. Crim. P.
11(a)(2), which now allows conditional guilty pleas in federal courts,
is particularly instructive on the need to evaluate legal issues in a
concrete factual context. Pursuant to the rule, a defendant may plead
guilty yet reserve the right to challenge certain legal issues on
appeal. Both the rule itself, which requires approval by the
prosecutor and the district court, and the accompanying conference
committee notes recognize that conditional pleas are meant for
case-dispositive matters that need not be evaluated in the context of
a complete trial and that such pleas should not be permitted with
respect to "'issues that cannot be adequately reviewed without a full
trial record.'" United States v. Curcio, 712 F.2d 1532, 1537 (2d Cir.
1983), quoting United States v. Burns, 684 F.2d 1066, 1073 (2d Cir.
1982), cert. denied, No. 82-5609 (Jan. 24, 1983). See also United
States v. Thibadeau, 671 F.2d 75, 80-81 (2d Cir. 1982); United States
v. Lace, 669 F.2d 46, 57 n.7 (2d Cir. 1982) (Newman, J., concurring),
cert. denied, 459 U.S. 854 (1982); Westen, Away From Waiver: A
Rationale for the Forfeiture of Constitutional Rights in Criminal
Procedure, 75 Mich. L. Rev. 1214, 1226 (1977); Saltzburg, pleas of
Guilty and the Loss of Constitutional Rights: The Current Price of
Pleading Guilty, 76 Mich. L. Rev. 1265, 1286 (1978); Note,
Conditional Guilty Pleas, 93 Harv. L. Rev. 564, 576 n.54 (1980);
Comment, Conditioned Guilty Pleas: Post-Guilty Plea Appeal of
Nonjurisdictional Issues, 26 U.C.L.A. L. Rev. 360, 370, 375, 378, 381
& n.101 (1978); D. Epstein & D. Austern, Crim. Just. Sec. ABA,
Uniform Rules of Criminal Procedure: Comparison and Analysis Rule
444(d) (July 1975); cf. United States v. Cox, 464 F.2d 937, 945 (6th
Cir. 1972).
/11/ The importance of the defendant's actual testimony is
demonstrated in the instant case, where petitioner may well not have
gone beyond what the court said it would permit without admitting the
impeachment evidence. See pages 11-12 note 6, supra.
/12/ For this reason, petitioner's reliance (Br. 9-10) on New
Jersey v. Portash, supra, is wholly misplaced. In Portash, the Court
concluded that use for impeachment purposes of testimony compelled
after a grant of immunity violates the constitutional guarantee
against self-incrimination (440 U.S. at 459-460). Here, by contrast,
petitioner can claim only a violation of an evidentiary rule that is
not of constitutional dimension. Cf. Middendorf v. Henry, 425 U.S.
25, 48 n.25 (1976) (exposure to greater punishment in order to receive
assistance of counsel does not impermissibly burden exercise of right
to counsel where right itself does not independently exist).
Moreover, the Court in Portash addressed the claim only because the
state court considered it adequately preserved for appeal (440 U.S. at
455). The Court accordingly did not "decide whether it would regard
the constitutional issue as having been properly presented if this
case had arisen in federal court" (id. at 462-463 n.2) (Powell, J.,
concurring)). Indeed, the dissenting Justices concluded that the
claim was too speculative to be reviewed even though the state court
had decided otherwise. Id. at 467-468 (Blackmun, J., dissenting).
The holding in Portash thus goes only so far as to establish that
Article III does not preclude appellate review of in limine rulings.
/13/ In criminal cases, pretrial motions may raise "(a)ny defense,
objection, or request which is capable of determination without the
trial of the general issue." Fed. R. Crim. R. 12(b). Rule 12(e)
permits the court "for good cause" to defer ruling on a pretrial
motion until trial. Of course where, as here, the motion is not made
until after trial has begun, the requirements of Rule 12(e) do not
apply. Moreover, because the balancing mandated by Rule 609(a)
depends critically on the actual course of trial (see page 11, supra),
it is doubtful that motions under this Rule are a proper subject for
definitive pretrial determination under Rule 12(b). Even if they are,
the need to take into account the actual course of trial would surely
constitute "good cause" for deferring the ruling under Rule 12(e).
See United States v. Cook, 608 F.2d at 1190 (Kennedy, J., dissenting
in part and concurring in part). Cf. United States v. Ciampaglia, 628
F.2d 632, 637-638 (1st Cir.), cert. denied, 449 U.S. 956 (1980) (court
must make co-conspirator determination at close of the evidence).
In United States v. Burkhead, 646 F.2d 1283 (8th Cir.), cert.
denied, 454 U.S. 898 (1981), the court of appeals held that the
district court abused its discretion in failing to rule on an limine
motion under Rule 609 because the convictions in question were on
substantive counts charged in the same indictment as the conspiracy
charge on which the defendant was then being tried. The court of
appeals recognized that "(i)n the usual case, the district court * * *
has discretion to refuse to rule in advance of trial on the
admissibility of impeachment evidence," but declared that "this case
falls so far outside the ordinary situation that the district court's
failure to rule * * * amounted to an abuse of discretion" (646 F.2d at
1285). No decision of the Eighth Circuit since Burkhead has reversed
on the basis of a failure to rule on a preliminary Rule 609 motion.
See, e.g., United States v. Gustafson, 728 F.2d 1078, 1084 (8th Cir.
1984); United States v. Rivers, 693 F.2d 52, 54 (8th Cir. 1982).
Although it is not relevant to the issue here, we note that the
district court's discretion to defer decision is restricted by Rule
12(e) when the government, rather than the defendant, seeks a
pre-trial ruling, since the government's "right to appeal (would
otherwise be) adversely affected." Fed. R. Crim. P. 12(e). See
generally United States v. Barletta, 644 F.2d 50 (1st Cir. 1981).
/14/ Petitioner's analogy (Br. 8-9) to Brooks v. Tennessee, 406
U.S. 605 (1972), is inapt. In Brooks, the Court invalidated a state
statute that required a defendant to testify before presenting any
other witnesses, or not at all. The statute violated the right to
remain silent because it "imposed a penalty for petitioner's initial
silence (by prohibiting him from thereafter taking the stand), and
that penalty constitutes the infringement of the right" (id. at 611
n.6). Here, by contrast, petitioner was free to decide whether or not
he would testify. See generally Jenkins v. Anderson, 447 U.S. at
235-246; Crampton v. Ohio, 402 U.S. at 215; Harris v. New York, 401
U.S. 222 (1971); Brown v. United States, 356 U.S. 148 (1958). Cf.
Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). The in limine
ruling neither compelled petitioner to testify nor required him to
remain silent. It simply informed him of one of the likely
consequences of his decision.
/15/ Petitioner's argument to the contrary "attempts to elevate a
matter of trial tactics to the level of a constitutional question"
(United States v. Witschner, 624 F.2d at 844). But even if the ruling
did raise constitutional problems, petitioner would still not be
entitled for that reason alone to present his claim on appeal after
refusing to testify. See Westen & Mandell, To Talk, to Balk, or to
Lie: The Emerging Fifth Amendment Doctrine of the "Preferred
Response," 19 Am. Crim. L. Rev. 521, 523-527 (1982) (individuals may
be required to raise constitutional claims by procedure that is least
burdensome to the state); New Jersey v. Portash, 440 U.S. at 462-463
& n.2 (Powell, J., concurring) ("preferred method" of raising
unconstitutional impeachment claim is for defendant to testify and
appeal from a conviction).
Moreover, there is nothing in Rule 609 itself to suggest that in
limine rulings should be reviewable. Cf. Westen & Mandell, supra, 19
Am. Crim. L. Rev. at 524 (nothing in Fifth Amendment favors any
particular procedure for preservation of self-incrimination claims).
The court of appeals' suggestion to the contrary in United States v.
Cook (608 F.2d at 1184) is plainly wrong. While Congress presumably
intended that appellate review of Rule 609 rulings be available, there
is no indication that it desired to broaden the availability of such
review beyond what is normally provided when evidence is actually
admitted over an objection. Indeed, to the extent that the Federal
Rules of Evidence and of Criminal Procedure throw any light on the
question, they suggest simply that review is generally available only
when a party is prejudiced by the admission of evidence at trial over
an objection. See Fed. R. Evid. 103(a); Fed. R. Crim. P. 52(a). See
also 28 U.S.C. 2111.
/16/ Petitioner's argument is that "a preliminary 609(a)(1) ruling
can dictate the course of the entire trial, and, as such, must be
subject to judicial review" (Br. 12). His related assertion that his
failure to testify should not be construed as a "waiver" of his claim
on appeal (id. at 12-13; see also United States v. Cook, 608 F.2d at
1184) confuses the concepts of waiver of a constitutional right and
failure to follow proper procedures for preserving an issue for
appeal. See generally Garner v. United States, 424 U.S. 648, 654 n.9
(1976); see also Westen & Mandell, supra, 19 Am. Crim. L. Rev. at
523.
/17/ The exception now provided for conditional guilty pleas is not
applicable to evidentiary claims such as petitioner's. See page 16,
note 10, supra.
/18/ Petitioner should have been aware that he might forfeit his
evidentiary claim by not testifying, because prior Sixth Circuit
precedent suggested this result. See United States v. LeBlanc, 612
F.2d 1012 (6th Cir.), cert. denied, 449 U.S. 849 (1980). Moreover,
Justice Powell's admonition (New Jersey v. Portash, 440 U.S. at
462-463 n.2 (concurring opinion) that this may be the only proper way
to preserve such a claim in federal courts was available years before
petitioner was tried. In any event, a defendant need not be
explicitly advised of the proper procedure for preserving claims where
it should reasonably have been evident to him. See United States v.
Knox, 396 U.S. 77 (1969); United States v. Kordel, 397 U.S. 1 (1970).
/19/ While petitioner may of course have preferred an acquittal at
his first trial and toward that end have decided not to testify, he
could not ignore the need to establish a record to support his claims
on appeal in the event of a conviction. To the extent that these
courses may have conflicted, petitioner could properly be required to
choose between them. See United States v. Calderon, 348 U.S. 160, 164
n.1 (1954) (defendant cannot challenge on appeal the denial of his
motion for acquittal at close of prosecution's case when he supplies
missing element of proof as part of his own case). See generally
United States v. Jorn, 400 U.S. 470, 484 (1971) (plurality opinion)
(society is not required "to assure the defendant a single proceeding
free from harmful governmental or judicial error"). This is precisely
the type of choice "with which criminal defendants and their attorneys
are quite routinely faced" (Crampton v. Ohio, 402 U.S. at 215), and
"it is not * * * inconsistent with the enlightened administration of
criminal justice to require the defendant to weigh such pros and cons
in deciding whether to testify" (ibid.). See United States v. Cook,
608 F.2d at 1188-1189 (Kennedy, J., dissenting in part and concurring
in part).
/20/ See, e.g., Westen & Mandell, supra, 19 Am. Crim. L. Rev. at
551 ("there are compelling reasons why a state might prefer that a
defendant respond to threatened impeachment by taking the witness
stand").
/21/ Confronted with the reversal of convictions because of errors
in preliminary rulings, district courts might well become more
reluctant to decide in limine motions, preferring instead to rule only
when impeachment evidence is actually offered at trial (Pet. App. 6a).
All parties would be left worse off without the benefit of the
court's advice.
/22/ If such rulings are to be reviewable, this Court should at
least make it clear that the burden will be on the defendant to
demonstrate prejudice from the denial of his motion. The defendant
would thus need to show not only that he would have testified
but for the adverse Rule 609 decision and what his testimony
would have been, but must also meet the burden of demonstrating
that his testimony would more probably than not have altered the
jury verdict.
United States v. Cook, 608 F.2d at 1188 (citation omitted)
(Wallace, J., concurring). Cf. United States v. Rivers, 693 F.2d at
54 (defendant seeking an in limine ruling must produce sufficient
facts to enable the court to rule, including a showing that he will
testify if he prevails and what his testimony will be). Accordingly,
should the Court decide, contrary to our position, that in limine
rulings may be reviewed on appeal even when the defendant does not
take the stand and the evidence in question is not admitted, we submit
that the Court should, at a minimum, adopt the requirements set forth
by the court of appeals in United States v. Cook (608 F.2d at 1186):
(T)o preserve the issue for review, a defendant must at least,
by a statement of his attorney: (1) establish on the record
that he will in fact take the stand and testify if his
challenged prior convictions are excluded; and (2) sufficiently
outline the nature of his testimony so that the trial court, and
the reviewing court, can do the necessary balancing contemplated
in Rule 609.
Cf. Fed. R. Evid. 103(a)(2) (offer of proof). We emphasize that
such an approach is hardly sufficient to overcome all of the
difficulties raised by reviewability of in limine rulings. Because a
defendant cannot be held to his representation that he will testify,
such a representation will not in itself establish prejudice. See,
e.g., United States v. Lipscomb, 702 F.2d 1049, 1069-1070 (D.C. Cir.
1983); United States v. Fountain, 642 F.2d 1083, 1087 n.3 (7th Cir.),
cert. denied, 451 U.S. 993 (1981). Moreover, even where a defendant
offers the court his testimony in advance, his actual trial testimony
may for a variety of reasons be different (see Pet. App. 9a n.4;
United States v. Oakes, 565 F.2d 170, 171 (1st Cir. 1977). How far
the government may go in cross-examining a defendant in advance is
also unclear (United States v. Toney, 615 F.2d at 282 (Tjoflat, J.,
concurring)), even though such cross-examination may be relevant to
the admissibility of the evidence in question. Should the court rule
in defendant's favor, but for any reason change the ruling at trial
after the defendant has testified, the defendant "will claim something
akin to 'entrapment'" (ibid.). Cf. United States v. Clark, 732 F.2d
1536, 1541-1542 (11th Cir. 1984) (court changed jury instruction from
that accepted at charge conference). Moreover, the in limine
procedures, even as circumscribed, can provide no assurance that the
prosecutor would in the event actually decide to introduce the
challenged evidence. Finally, even after all the time consumed by a
hearing, and even crediting a defendant's representation that he would
have testified, it will still be difficult to review the correctness
of the ruling and to determine whether, if error, it actually
prejudiced the defendant. United States v. Toney, 615 F.2d at 281
(Tjoflat, J., concurring); United States v. Cook, 608 F.2d at 1189
(Kennedy, J., dissenting in part and concurring in part)).